Legal status
The legal status of BDSM is entirely dependent on the legal structure of individual countries. Each individual country makes its own determination to whether the practice of BDSM has any criminal relevance or legal consequences. Criminalization of consensually implemented BDSM practices is usually not with explicit reference to BDSM itself (i.e., spanking an adult who specifically requests another to do such action to the requesting person), but results from the fact that such behavior could be considered a breach of personal rights, which in principle constitutes a criminal offense though some jurisdictions especially in the United States do specifically list such acts as flagellation (spanking) between consenting adults as "assault" regardless of consent between such consenting parties.
In Germany, Netherlands, Japan and Scandinavia such behavior is legal in principle. In Austria the legal status is unclear, while in Switzerland certain BDSM practices can be considered criminal. Spectacular incidents like the US-American scandal of People v. Jovanovic and the British Operation Spanner demonstrate the degree to which difficult grey areas can pose a problem for the individuals and authorities involved. For these reasons it is important for practitioners of BDSM to learn the legal status concerning BDSM activities in the country they reside in.
The legal status of BDSM is entirely dependent on the legal structure of individual countries. Each individual country makes its own determination to whether the practice of BDSM has any criminal relevance or legal consequences. Criminalization of consensually implemented BDSM practices is usually not with explicit reference to BDSM itself (i.e., spanking an adult who specifically requests another to do such action to the requesting person), but results from the fact that such behavior could be considered a breach of personal rights, which in principle constitutes a criminal offense though some jurisdictions especially in the United States do specifically list such acts as flagellation (spanking) between consenting adults as "assault" regardless of consent between such consenting parties.
In Germany, Netherlands, Japan and Scandinavia such behavior is legal in principle. In Austria the legal status is unclear, while in Switzerland certain BDSM practices can be considered criminal. Spectacular incidents like the US-American scandal of People v. Jovanovic and the British Operation Spanner demonstrate the degree to which difficult grey areas can pose a problem for the individuals and authorities involved. For these reasons it is important for practitioners of BDSM to learn the legal status concerning BDSM activities in the country they reside in.
Germany
The practice of BDSM is not generally penalized in Germany if it is conducted with the mutual consent of the partners involved. To fulfill the charge of coercion the use of violence, or the threat of a "severe mistreatment" must involve an endangerment to life and limb. In cases where the continued application of the treatment could be ended through the use of a safeword, neither coercion nor sexual coercion may be charged. Similar principles apply for charges of sexual abuse of people incapable of resistance. In such cases taking advantage of a person's inability to resist in order to perform sexual acts on that person would be clearly punishable. The potential use of the safeword is considered to be sufficient possibility for resistance since this would lead to the cessation of the act, so a true inability to resist is not considered to be in effect.
According to §194 the charge of insult (slander) can only be prosecuted if the defamed person chooses to press charges. False imprisonment can be charged if the victim—when applying an objective view—can be considered to be impaired in his or her rights of free movement. According to §228 of the German criminal code a person inflicting a bodily injury on another person with that person's permission violates the law only in cases where the act can be considered to have violated good morals in spite of permission having been given. On 26 May 2004 the Criminal Panel No. 2 of the Bundesgerichtshof (German Federal Court) ruled that sado-masochistically motivated physical injuries are not per se indecent and thus subject to §228.
Still, this ruling makes the question of indecency dependent on the degree to which the bodily injury might be likely to impair the health of the receiving party. According to the BGH, the line of indecency is definitively crossed when "under an objectively prescient consideration of all relevant circumstances the party granting consent could be brought into concrete danger of death by the act of bodily injury". In its ruling, the court overturned a verdict by the Provincial Court of Kassel, according to which a man who had accidentally strangled his partner to death had been sentenced to probation for negligent manslaughter. The court had rejected a conviction on charges of bodily injury leading to death on the grounds that the victim had, in its opinion, consented to the act.
Following cases in which sado-masochistic practices had been repeatedly used as pressure tactics against former partners in custody cases, the Appeals Court of Hamm ruled in February 2006 that sexual inclinations toward sado-masochism are no indication of a lack of capabilities for successful child-raising.
The practice of BDSM is not generally penalized in Germany if it is conducted with the mutual consent of the partners involved. To fulfill the charge of coercion the use of violence, or the threat of a "severe mistreatment" must involve an endangerment to life and limb. In cases where the continued application of the treatment could be ended through the use of a safeword, neither coercion nor sexual coercion may be charged. Similar principles apply for charges of sexual abuse of people incapable of resistance. In such cases taking advantage of a person's inability to resist in order to perform sexual acts on that person would be clearly punishable. The potential use of the safeword is considered to be sufficient possibility for resistance since this would lead to the cessation of the act, so a true inability to resist is not considered to be in effect.
According to §194 the charge of insult (slander) can only be prosecuted if the defamed person chooses to press charges. False imprisonment can be charged if the victim—when applying an objective view—can be considered to be impaired in his or her rights of free movement. According to §228 of the German criminal code a person inflicting a bodily injury on another person with that person's permission violates the law only in cases where the act can be considered to have violated good morals in spite of permission having been given. On 26 May 2004 the Criminal Panel No. 2 of the Bundesgerichtshof (German Federal Court) ruled that sado-masochistically motivated physical injuries are not per se indecent and thus subject to §228.
Still, this ruling makes the question of indecency dependent on the degree to which the bodily injury might be likely to impair the health of the receiving party. According to the BGH, the line of indecency is definitively crossed when "under an objectively prescient consideration of all relevant circumstances the party granting consent could be brought into concrete danger of death by the act of bodily injury". In its ruling, the court overturned a verdict by the Provincial Court of Kassel, according to which a man who had accidentally strangled his partner to death had been sentenced to probation for negligent manslaughter. The court had rejected a conviction on charges of bodily injury leading to death on the grounds that the victim had, in its opinion, consented to the act.
Following cases in which sado-masochistic practices had been repeatedly used as pressure tactics against former partners in custody cases, the Appeals Court of Hamm ruled in February 2006 that sexual inclinations toward sado-masochism are no indication of a lack of capabilities for successful child-raising.
United Kingdom
In British law, consent is an absolute defence to common assault, but not necessarily to actual bodily harm, where courts may decide that consent is not valid, as occurred in the case of R v Brown. Accordingly consensual activities in the UK may not constitute "assault occasioning actual or grievous bodily harm" in law. The Spanner Trust states that this is defined as activities which have caused injury "of a lasting nature" but that only a slight duration or injury might be considered "lasting" in law. The decision contrasts with the later case of R v Wilson in which conviction for non-sexual consensual branding within a marriage was overturned, the appeal court ruling that R v Brown was not an authority in all cases of consensual injury and criticizing the decision to prosecute.
Following Operation Spanner the European Court of Human Rights ruled in January 1999 in Laskey, Jaggard and Brown v. United Kingdom that no violation of Article 8 occurred because the amount of physical or psychological harm that the law allows between any two people, even consenting adults, is to be determined by the jurisdiction the individuals live in, as it is the State's responsibility to balance the concerns of public health and well-being with the amount of control a State should be allowed to exercise over its citizens. In the Criminal Justice and Immigration Bill 2007, the British Government cited the Spanner case as justification for criminalizing images of consensual acts, as part of its proposed criminalization of possession of "extreme pornography". Another contrasting case was that of Stephen Lock in 2013, who was cleared of actual bodily harm on the grounds that the woman consented. In this case, the act was deemed to be sexual.
In British law, consent is an absolute defence to common assault, but not necessarily to actual bodily harm, where courts may decide that consent is not valid, as occurred in the case of R v Brown. Accordingly consensual activities in the UK may not constitute "assault occasioning actual or grievous bodily harm" in law. The Spanner Trust states that this is defined as activities which have caused injury "of a lasting nature" but that only a slight duration or injury might be considered "lasting" in law. The decision contrasts with the later case of R v Wilson in which conviction for non-sexual consensual branding within a marriage was overturned, the appeal court ruling that R v Brown was not an authority in all cases of consensual injury and criticizing the decision to prosecute.
Following Operation Spanner the European Court of Human Rights ruled in January 1999 in Laskey, Jaggard and Brown v. United Kingdom that no violation of Article 8 occurred because the amount of physical or psychological harm that the law allows between any two people, even consenting adults, is to be determined by the jurisdiction the individuals live in, as it is the State's responsibility to balance the concerns of public health and well-being with the amount of control a State should be allowed to exercise over its citizens. In the Criminal Justice and Immigration Bill 2007, the British Government cited the Spanner case as justification for criminalizing images of consensual acts, as part of its proposed criminalization of possession of "extreme pornography". Another contrasting case was that of Stephen Lock in 2013, who was cleared of actual bodily harm on the grounds that the woman consented. In this case, the act was deemed to be sexual.
United States
The United States Federal law does not list a specific criminal determination for consensual BDSM acts. Many BDSM practitioners cite the legal decision of People v. Jovanovic, 95 N.Y.2d 846 (2000), or the "Cybersex Torture Case" which was the first U.S. appellate decision to hold (in effect) one does not commit assault if victim consents. However, many individual states do criminalize specific BDSM actions within their state borders. Some states specifically address the idea of "consent to BDSM acts" within their assault laws such as the state of New Jersey which states "simple assault" to be defined as "a disorderly persons offense unless committed in a fight or scuffle entered into by mutual consent, in which case it is a petty disorderly persons offense". BDSM activities including flagellation (spanking) specifically without paying for such action (i.e., prostitution) between consenting adults are specifically addressed as illegal in certain individual states.
The United States Federal law does not list a specific criminal determination for consensual BDSM acts. Many BDSM practitioners cite the legal decision of People v. Jovanovic, 95 N.Y.2d 846 (2000), or the "Cybersex Torture Case" which was the first U.S. appellate decision to hold (in effect) one does not commit assault if victim consents. However, many individual states do criminalize specific BDSM actions within their state borders. Some states specifically address the idea of "consent to BDSM acts" within their assault laws such as the state of New Jersey which states "simple assault" to be defined as "a disorderly persons offense unless committed in a fight or scuffle entered into by mutual consent, in which case it is a petty disorderly persons offense". BDSM activities including flagellation (spanking) specifically without paying for such action (i.e., prostitution) between consenting adults are specifically addressed as illegal in certain individual states.
Canada
In 2004 a judge in Canada ruled that videos seized by the police featuring BDSM activities were not obscene, and did not constitute violence, but a "normal and acceptable" sexual activity between two consenting adults.
In 2011, the Supreme Court of Canada ruled in R. v. J.A. that a person must have an active mind during the specific sexual activity in order to legally consent. The Court ruled that it is a criminal offence to perform a sexual act on an unconscious person—whether or not that person consented in advance.
In 2004 a judge in Canada ruled that videos seized by the police featuring BDSM activities were not obscene, and did not constitute violence, but a "normal and acceptable" sexual activity between two consenting adults.
In 2011, the Supreme Court of Canada ruled in R. v. J.A. that a person must have an active mind during the specific sexual activity in order to legally consent. The Court ruled that it is a criminal offence to perform a sexual act on an unconscious person—whether or not that person consented in advance.
Italy
In Italian law BDSM is right on the border between crime and legality, and everything lies in the interpretation of the legal code by the judge. This concept is that anyone willingly causing "injury" to another person is to be punished. In this context though "injury" is legally defined as "anything causing a condition of illness", and "illness" is ill-defined itself in two different legal ways. The first is "any anatomical or functional alteration of the organism" (thus technically including little scratches and bruises too); The second is "a significant worsening of a previous condition relevant to organic and relational processes, requiring any kind of therapy". This could make it somewhat risky to play with someone as later the "victim" may call foul play citing even an insignificant mark as evidence against the partner. Also any injury requiring over 20 days of medical care must be denounced by the professional medic who discovers it, leading to automatic indictment of the person who caused it.
In Italian law BDSM is right on the border between crime and legality, and everything lies in the interpretation of the legal code by the judge. This concept is that anyone willingly causing "injury" to another person is to be punished. In this context though "injury" is legally defined as "anything causing a condition of illness", and "illness" is ill-defined itself in two different legal ways. The first is "any anatomical or functional alteration of the organism" (thus technically including little scratches and bruises too); The second is "a significant worsening of a previous condition relevant to organic and relational processes, requiring any kind of therapy". This could make it somewhat risky to play with someone as later the "victim" may call foul play citing even an insignificant mark as evidence against the partner. Also any injury requiring over 20 days of medical care must be denounced by the professional medic who discovers it, leading to automatic indictment of the person who caused it.
Austria
§90 of the criminal code declares bodily injury (§§ 83, 84) or the endangerment of physical security (§89) to not be subject to penalty in cases in which the "victim" has consented and the injury or endangerment does not offend moral sensibilities. Case law from the Austrian Supreme Court has consistently shown that bodily injury is only offensive to moral sensibilities, thus it is only punishable when a "serious injury" (a damage to health or an employment disability lasting more than 24 days) or the death of the "victim" results. A light injury is generally consideredpermissible when the "victim" has consented to it. In cases of threats to bodily well-being the standard depends on the probability that an injury will actually occur. If serious injury or even death would be a likely result of a threat being carried out, then even the threat itself is considered punishable.
§90 of the criminal code declares bodily injury (§§ 83, 84) or the endangerment of physical security (§89) to not be subject to penalty in cases in which the "victim" has consented and the injury or endangerment does not offend moral sensibilities. Case law from the Austrian Supreme Court has consistently shown that bodily injury is only offensive to moral sensibilities, thus it is only punishable when a "serious injury" (a damage to health or an employment disability lasting more than 24 days) or the death of the "victim" results. A light injury is generally consideredpermissible when the "victim" has consented to it. In cases of threats to bodily well-being the standard depends on the probability that an injury will actually occur. If serious injury or even death would be a likely result of a threat being carried out, then even the threat itself is considered punishable.
Switzerland
The age of consent in Switzerland is 16 years which also applies for BDSM play. Minors (i.e. those under 16) are not subject to punishment for BDSM play as long as the age difference between them is less than three years. Certain practices however require granting consent for light injuries with only those over 18 permitted to give consent. On 1 April 2002 Articles 135 and 197 of the Swiss Criminal Code were tightened to make ownership of "objects or demonstrations [...] which depict sexual acts with violent content" a punishable offense. This law amounts to a general criminalization of sado-masochism since nearly every sado-masochist will have some kind of media which fulfills this criterion. Critics also object to the wording of the law which puts sado-masochists in the same category as pedophiles and pederasts.
The age of consent in Switzerland is 16 years which also applies for BDSM play. Minors (i.e. those under 16) are not subject to punishment for BDSM play as long as the age difference between them is less than three years. Certain practices however require granting consent for light injuries with only those over 18 permitted to give consent. On 1 April 2002 Articles 135 and 197 of the Swiss Criminal Code were tightened to make ownership of "objects or demonstrations [...] which depict sexual acts with violent content" a punishable offense. This law amounts to a general criminalization of sado-masochism since nearly every sado-masochist will have some kind of media which fulfills this criterion. Critics also object to the wording of the law which puts sado-masochists in the same category as pedophiles and pederasts.
Nordic countries
In September 2010 a Swedish court acquitted a 32 year old man of assault for engaging in consensual BDSM play with a 16 year old woman (the age of consent in Sweden is 15). Norway's legal system has likewise taken a similar position, that safe and consensual BDSM play should not be subject to criminal prosecution. This parallels the stance of the mental health professions in the Nordic countries which have removed sadomasochism from their respective lists of psychiatric illnesses.
In September 2010 a Swedish court acquitted a 32 year old man of assault for engaging in consensual BDSM play with a 16 year old woman (the age of consent in Sweden is 15). Norway's legal system has likewise taken a similar position, that safe and consensual BDSM play should not be subject to criminal prosecution. This parallels the stance of the mental health professions in the Nordic countries which have removed sadomasochism from their respective lists of psychiatric illnesses.
