Legality of Kink & BDSM
In the United States, the legality of acting on a specific kink varies greatly depending on the state in which you live.
Very rarely do US laws use the words ‘kink’, ‘fetish’, or ‘BDSM’, instead referencing types of activities such as sadomasochism and spanking, or addressing the matter of consent.
A number of historic court cases have influenced the ways in which the United States legal system addresses sex, consent, and one’s sexual preferences and orientation.
“Obscene Material” & The U.S. Supreme Court
It’s a commonly-held belief in the U.S. that the First Amendment of the Constitution unilaterally protects all forms of speech. Historically, however, the Supreme Court has recognized three types of speech for which the First Amendment offers no protection: libel, ‘fighting words’ (aka inciting violence), and obscenity.
The historic case of Roth v. United States in 1957 gave SCOTUS its first opportunity to define the concept of obscenity, as well as to create its own standards by which future cases of this type could be decided.
At the heart of this case was Mr. Samuel Roth, who owned a mail-order business that distributed pornographic material, specifically in the form of a book. The lower courts held the book to be legally obscene and therefore not protected by the First Amendment. In what became known as the ‘Roth Test’, the Supreme Court upheld the lower courts’ decisions, ruling that,
“The standard for judging obscenity [...] is whether, to the average person, applying contemporary community standards, the dominant theme of the material, taken as a whole, appeals to prurient interest.”
The Roth Test would subsequently be applied to a number of cases, and its criteria tweaked by the Supreme Court over time - most notably with Jacobellis v Ohio (1964) and Memoirs v Massachusetts (1966), which added the concepts of community standards and social value to the test. In the years that followed, the Roth test actually protected quite a number of individuals in terms of how they chose to explore their sexuality, especially in private. For example, only a year after the Roth test was enacted, One v. Olesen (1958) ruled that homosexual content wasn’t considered obscene. In 1969, Stanley v Georgia declared that possession of pornographic material wasn’t either.
In 1973, after becoming increasingly entangled in the finer points of determining what was or wasn’t ‘obscene’, the Supreme Court ostensibly threw up its collective hands and determined in Miller v California that the ‘community standards’ of what was considered obscene should be redefined completely.
Obscene speech is still defined today as meeting the following criteria, known as the Miller test, which subsequently includes abuse of, or distribution to, minors:
Whether the average person, applying contemporary adult community standards, finds that the matter, taken as a whole, appeals to prurient interests (i.e., an erotic, lascivious, abnormal, unhealthy, degrading, shameful, or morbid interest in nudity, sex, or excretion);
Whether the average person, applying contemporary adult community standards, finds that the matter depicts or describes sexual conduct in a patently offensive way (i.e., ultimate sexual acts, normal or perverted, actual or simulated, masturbation, excretory functions, lewd exhibition of the genitals, or sado-masochistic sexual abuse); and
Whether a reasonable person finds that the matter, taken as a whole, lacks serious literary, artistic, political, or scientific value.
By these standards, even recordings or photographs of softer BDSM activities could potentially come with serious consequences.
Be aware that if your state has done away with obscenity laws (such as in Oregon’s 1987 case, State v Henry) you can technically still be held accountable for such actions at the federal level.
Sodomy in the United States
Most people assume that the term ‘sodomy’ is synonymous with anal sex. By U.S. legal standards however, sodomy is tied to any sexual act defined as ‘unnatural’, and the court system includes everything from bestiality to oral sex under this same umbrella term.
In the landmark 2003 case of Lawrence v Texas, the Supreme Court ruled that consensual activity between same-sex couples is constitutional.
This effectively invalidated sodomy as a crime in the remaining twelve states where it was still illegal; three of which specifically targeted same-sex relations (in bold): Florida, Georgia, Kansas, Kentucky, Louisiana, Massachusetts, Michigan, Mississippi, North Carolina, Oklahoma, South Carolina and Texas.
Sadly, the SCOTUS decision hasn’t swayed these states from removing the laws from their books, unfortunately leaving many LGBTQI+ communities susceptible to baseless harassment.
In 2004, only a year after the Lawrence ruling, Virginia legislators reaffirmed their anti-sodomy law, upholding the “crimes against nature” clause, demonstrating conservative power in the face of progressive lobbyists and lawmakers vying for its removal. Over a decade later, in 2015, a gay couple was arrested in Louisiana for having sex in the back of a car. Although the judge for the case immediately threw out the charges, the pervasiveness of intolerance in US culture is highlighted by the resistance of these states to remove the discriminatory text from their books.
State Precedents in the US
Because state laws are mutually exclusive - one state’s laws cannot directly impact another state’s laws - we’ve specified the state for each case. Note: Some of these cases contain details which you may find distressing.Commonwealth v Appleby, MA (1978)
A masochist (Cromer) and a Sadist (Appleby) had entered into a two-year long consensual S/m relationship. The relationship progressively became more violent, and eventually went beyond the realms of what had been negotiated by Cromer.
Against his consent, Appleby inflicted serious harm on Cromer, and was subsequently held on trial as a result. Appleby was ultimately charged with assault and battery with a deadly weapon and sentenced to up to 10 years in Massachusetts Correctional Institution.
This case shed important light on the nature of consent within sadomasochistic relationships and set a precedent for how consent would be treated in the years to follow.
State v Collier, IA (1985)
A female out-call model (Steel) was subjected to BDSM acts whilst being detained by Collier, the owner of the business where she was employed.
Collier claimed Steel had instructed him to tie her up and beat her, and the sadomasochistic activities should be deemed a “social activity” under Iowa State law.
Steel, conversely, argued she was fulfilling one of Collier’s sexual fantasies, but the beatings went too far. It’s unclear from existing court records how the ordeal ultimately came to a close, but the court record states Steel was able to locate a gun near the bed, shooting at Collier in self-defence. Collier was ultimately charged with assault.
This case set an important precedent related to the consent to harm in the State of Iowa. Here, the ruling held that BDSM could not use the same exemption clause as sports that had a high risk of bodily injury. In other words, because this was a BDSM activity and not a sport, the defence was found guilty.
State v Van, NE (2004)
Over three months, JGC and Van, a slave and Master respectively, exchanged hundreds of emails. JGC staged his own abduction in Texas, reappearing at Van’s floral shop in Omaha, Nebraska two days later.
During the tumultuous relationship that followed, JGC submitted to many S&M activities and asked repeatedly to go home. Believing everything had been negotiated to be this way, Van ignored the pleas.
After a length of time, JGC was able to gain the sympathy of another slave under Van’s Mastery who aided his escape and return home.
The consequences were severe - JGC was likely traumatised for life and Van was charged with numerous assault charges, false imprisonment, and terroristic threats.
The case underscored the importance of education and informed consent within the context of M/s relationships, especially those that are entered into with “no limits”, where things can go very wrong very quickly.
Doe v George Mason University, VA (2015)
John and Jane Doe frequently engaged in BDSM. After Jane claimed John ignored her safeword, the couple broke up. John continued to try and make contact with Jane, and she filed a complaint with the university.
Following a hearing where Jane brought to light the sexual assault, the school promptly expelled John Doe. He immediately sued for readmission on the grounds the school had overlooked the BDSM aspects of their relationship which “affected matters like consent and related issues.”
The presiding judge denied the defendant’s claim, but stated there to be “no basis to conclude that tying up a willing submissive sex partner and subjecting him or her to whipping, choking, or other forms of domination is deeply rooted in the nation’s history and traditions or implicit in the concept of ordered liberty”, tagging his own prejudice against BDSM practice onto the case, though it thankfully didn’t affect the legal ruling.
The positive flipside of having these laws in the United States is that the structure of government allows for citizens to enact changes at every level of government (or at least, this is what it’s supposed to do).
Finding your footing when it comes to the legality of kink and BDSM can be a bit tricky.
The positive flipside of having these laws in the United States is that the structure of government allows for citizens to enact changes at every level of government.
Non-profits around the country are always looking for volunteers, and our communities are in constant need of sincere and educated kinksters. While the laws may still be on the books, that does not mean you have to be defined by them.
The National Coalition for Sexual Freedom is a non-profit organization in the United States that continues to enact positive changes in regard to the legality of kinks and BDSM. Their website provides a breakdown of consent laws by state, and we encourage kinksters living in the U.S. to educate themselves on their personal rights.
Canada’s Criminal Code offers little guidance to a clear answer of whether kink & BDSM are legal, but has created legal boundaries around concepts like obscenity and consent.
Canadians still face obstacles to comprehensive sex education and sexual rights, as outlined by Action Canada, a charitable organization whose mission includes “advancing and upholding sexual and reproductive health and rights in Canada and globally.” Despite this, Canada permits sex and swingers clubs in every province making it much more accepting of sexual expression than its southern neighbour, the United States.
A number of historic court cases have influenced the ways in which Canada’s legal system addresses sex, consent, and one’s sexual preferences and orientation.
“Obscene Matter” & the Community Standards Test
Since its creation in 1892, the Canadian Criminal Code has addressed “obscene matter”, specifically in the context of morality.
The original definition of what constituted obscene matter was based on the Hicklin Test, a decades-old legal mechanism used by England since 1857. This test argued that the obscenity of given content could be defined by the likelihood it had to “to deprave and corrupt those whose minds are open to such immoral influences”, though an explicit definition of “obscene” wasn’t incorporated into the Code until 1959.
Just two years after the US Supreme Court defined obscenity, Canada amended its Criminal Code to define ‘obscene matter’ as
any publication a dominant characteristic of which is the undue exploitation of sex, or of sex and any one or more of the following subjects, namely, crime, horror, cruelty and violence. (s163.8)
Mirroring the United States, the Supreme Court of Canada refined its definition by applying community standards in the 1963 case, Dominion News & Gifts Ltd. v. The Queen. The Supreme Court made an important distinction from the United States however, stating that
“In applying the definition in the Criminal Code, we must determine what is obscene by Canadian standards, regardless of attitudes which may prevail elsewhere, be they more liberal or less so."
As cases were heard in continuing years, Canadian community standards came to also include a test of tolerance, but not in terms of what individual Canadians might find tolerable to see. Rather, it was a test of what Canadians could not abide because it would go against agreed upon standards of Canadian society (1985, Town Cinema Theatres Ltd).
R. v Butler (1992) later tied community standards to the harm of women (and sometimes men) through the distribution of porn. The Court determined that the standard of tolerance is determined by the likelihood of harm.
In 2018, repeals to section 163 of the Code omitted selling, advertising, or publication of materials related to abortion or miscarriage, as well as any that represented a means for restoring sexual virility or STD/STIs.
One of the legal grey areas in section 163 relates to public exhibitionism, specifically of “a disgusting object or an indecent show.” Exhibitionists and voyeurs alike should keep this in mind when planning events or other engagements that may potentially run counter to current legal community standards in Canada.
Consent to Harm in Canadian Law
Canadian kinksters should be aware that under current law, a person cannot consent to bodily harm.
This means engaging in S&M activities, rough sex, or anything that might leave a mark on the body of you or your partner, means you run the risk of facing legal repercussions if you’re brought to court. What’s more, you may also face sexual assault charges.
In 2013, the Ontario Court of Appeals outlined a test for determining sexual assault causing bodily harm in R v Zhao. These all hinge on intention.
The accused intentionally applied force to the Complainant
The intentional application of force to the complainant took place in circumstances of a sexual nature so as to violate the complainant’s sexual integrity
The intentional application of force in circumstances of a sexual nature caused bodily harm
If the accused intended to inflict bodily harm upon the complainant, then consent is irrelevant, and the accused is found guilty of sexual assault causing bodily harm
If the intent is not proven, the court must consider whether complainant did not consent to the intentional application of force
Exceptions exist to these rules, the most notable being professional sports. For example, boxers may mutually consent to harming one another, as the Supreme Court holds such things to be in alignment with public interest and community standards.
When the use of societal norms and standards are used to structure laws, it’s no surprise that BDSM and kink would fall outside of such values.
Legal Precedents in Canada
Note: Some of these cases contain details which you may find distressing.R v Welch (1995)
A 46-year-old woman testified to being tied up at the appellant’s residence where he beat and sexually assaulted her through forced penetration of her vagina and rectum. It was her position that these things were done without her consent.
Whilst the appellant didn't deny the actions, he did claim the actions were not only consented to but requested and encouraged by the woman.
Though the court ruled this wasn't a mutually consensual encounter, the more wide-reaching decision was that even if it had been, it would have been illegal:
“Although the law must recognize individual freedom and autonomy, when the activity in question involves pursuing sexual gratification by deliberately inflicting pain upon another that gives rise to bodily harm, then the personal interest of the individuals involved must yield to the more compelling societal interests which are challenged by such behaviour.”
Such a ruling presented a significant setback for both sides of the slash.
While the plaintiff in this case did not consent to being harmed, those who do consent to being hurt have their autonomy removed by decisions such as this which are based on social morals and not on individual freedom as the law argues.
D-types likewise take the risk of being labelled as sexual predators in any cases that involve mutual consent.
KD v JA (2011)
A female (KD) and her male partner (JA) engaged in kink activities on a regular basis.
KD testified that she and JA had engaged in erotic asphyxiation, and JA had strangled her until she lost consciousness. During that period of unconsciousness, JA had inserted a dildo into her anus.
KD claimed at trial she had consented to every activity, contrary to her police statement, which claimed that the anal penetration had been non-consensual.
This case addressed the concept of granting advance consent to sex while unconscious, specifically in the context of breath play (erotic asphyxiation).
Whilst there is an argument to be made that the court should have looked more closely at why her testimony changed, the focus of this case was more on whether or not a person can legally consent to sexual activity before it occurs, specifically in a period of unconsciousness.
The decision in this case was a resounding “no”, as the court determined that unconsciousness negated any previous expressions of consent.
Overall, kinky Canucks should bear in mind that BDSM activities come with legal risks as well as physical ones.
The positive flipside is that Canada is largely a sex-positive and welcoming country for sexual exploration.
Across every province, Canada is full of sex and BDSM clubs, events, and playspaces.
Laws may exist, but it’s clear that Canadians don’t seek to be defined by them.
In Australia, pornography is banned nationwide, though it is still accessible online and not prone to being enforced.
In Italy, the judge presiding over the case has sole authority over whether or not the issue at hand is legal. If you end up having your case heard by a judge with a moral objection to kink, you may be seen as a criminal.
In the UK, the law does not recognise consent to actual bodily harm, even if your partner argues consent.
There are also “extreme pornography” laws in the UK prohibiting images or video depicting acts which threaten a person’s life, acts which result, or are likely to result, in serious injury to a person’s anus, breasts or genitals, as well as prohibiting images or video depicting necrophilia, bestiality, and rape or assault by penetration. The caveat of UK extreme pornography law is that it only applies where it's reasonable to believe the persons or animals involved are real.
In Germany, kink is not generally criminalised, but individual acts are covered by the criminal code, like sexual assault, coercion, and false imprisonment.
Acts like snuff, crushing, and scat are illegal in many countries, as is the distribution of related pornography. Sex outside of marriage is also considered illegal in nine countries as of 2022.
Rough sex can also be deemed assault in a number of countries.
Whilst it’s not always illegal to indulge a kink or fetish, bear in mind anything we do in the lifestyle can be considered assault if someone withdraws their consent - even years down the line.
Often, it’s an argument of ethics over morality; a lot of people in the lifestyle are driven by morality, but what harms someone may not necessarily be what hurts them.
There are numerous cases where this has happened, so the only advice we can offer is to be mindful, be aware, and be sure of the local laws and potential ramifications.
Legality Of Specific Kinks and Fetishes
Bestiality
There are many countries where bestiality is legal (which is particularly unusual considering there are US states where one can legally engage in sexual activities with an animal, yet having sex with the same gender or sex is still against the law). As of 2021, this includes Hawaii, New Mexico, West Virginia, and Wyoming. Even in several EU countries, sexual conduct with an animal is a legal act, although campaigners fight for more animal rights every day.
Considering the argument that kink must be consensual, an animal cannot say yes or no, and therefore bestiality is considered morally and ethically wrong in kink practice. However, from a legal standpoint in these countries, the practice itself is perfectly allowed.
Age Play, CNC & Rape Play
The legal age to get married with parental consent in some religions and cultures around the world is as low as twelve years old, but charities and associations across the globe are fighting to bring these laws in line with globally acceptable levels.
The illegality of raptophilia, the sexual arousal one feels from sexual activity with a non-consenting person, can be countered by the argument that it can be done ethically via kinks such as Consensual Non-Consent (CNC) and rape play, both of which are relatively commonplace within BDSM.
However, the judicial system will often still look upon these consensual activities as outside of the law.
In stark contrast, marital rape - forcing one’s spouse to have sex against their will - is still legal in several countries at the time of this book going to print. Marital rape is also legally permissible in some countries even if the victim is a child, or where the ‘marriage’ is in violation of the minimum age of marriage laws.
Exhibitionism & Voyeurism
The legality of exhibitionism and voyeurism both depend on consent.
Engaging in these activities without permission of others involved - regardless of whether the other person might have consented if they'd known - would likely still be treated as a crime in countries where it’s a criminal offence.
Non-consensual exhibitionism (E) and voyeurism (V) might include examples such as:
Exposing your genitals to a stranger (E)
Sex in a public or open space (E)
Upskirting (V)
Recording or photographic someone without their knowledge (V)
“Peeping Tom” behaviour (V)
Both exhibitionism and voyeurism are considered paraphilic disorders according to the The Diagnostic and Statistical Manual of Mental Disorders (DSM), as they would likely result in feelings of shame, emotional distress, and stress/anxiety for one or all parties involved.
Under the 2003 Sexual Offences Act in the United Kingdom, a person charged with indecent exposure may face imprisonment for up to two years and fines of up to £5,000.
Global Legal Precedents
Note: Some of these cases contain details which you may find distressing.R v Brown (1993) - UK
Over the course of a ten year period, five men had willingly engaged in sadomasochistic activities, including genital torture, for sexual gratification. Passive partners (or “victims”) consented fully and suffered no permanent injury. Each act took place in private.
The charges brought included actual bodily harm and unlawful wounding. The initial trial judge held that the consent of the victim was no defence for the charges, and the appellants pleaded guilty and were sentenced to terms of imprisonment.
The appellants later appealed against their convictions, on the grounds that a person could not be guilty of assault if consensual acts were conducted in private. The Court of Appeal dismissed their appeals. The appellants further appealed to the House of Lords who ruled on the majority that consensual sadomasochistic encounters which cause actual bodily harm to a victim is assault.
They held this in the interests of public policy and dismissed the appeal.
This case makes it quite clear that BDSM is not legal in the United Kingdom because bottoms cannot legally consent to being hurt by Tops. Whilst consent can be used as a defence in vanilla activities ranging from surgery to tattoos to rugby, this decision created the precedent that such a defence isn’t applicable to kink.
Yet just five years later in a different case (R v Wilson), a husband was found innocent for branding his initials on his wife’s buttocks. For this and other reasons, many see the ruling in R v Brown as homophobic.
Murphy v the State (2023) - Australia
In this case, Murphy sought damages for the wrongful arrest and personal impact of two prior arrests for charges of sexual assault which were subsequently dismissed. This kinkster sought damages for the impact such a court case had both emotionally and financially.
It’s important to note that the original case highlighted the choice not to use safewords, which were considered to be a marker of inauthenticity during encounters. Trust was instead placed in an ability to know when to stop.
Rather than focus on the original charges against Murphy, however, this case highlights the risks inherent in meeting individuals from online fetish sites, and how both sides of the slash can be impacted should consent be withdrawn or boundaries otherwise overstepped.
Many cases like this occur across any given year, and this case in particular was important for the online kink communities, due to Murphy’s well-known online persona. The high-profile nature of the original case outed Murphy in spite of a non-publication order of the judgement, and the subsequent counter suit resulted in online pseudonyms and affiliations being released. Both cases caused significant repercussions on social media as people speculated and passed their own judgements on all parties involved for the lack of safewords, and relying on someone knowing your limits and respecting them.
Whilst kinksters cannot protect themselves from every possible scenario, respecting boundaries, requiring safewords, and negotiating scenes can go a long way toward ensuring a positive experience for everyone.
The State v Coko (2024) - South Africa
In 2021, the State sought to reinstate the charges against Coko, who had previously been charged with having penetrative vaginal sex with his girlfriend at the time.
The original charge had relied upon the defendant’s repeated insistence that she did not want to have vaginal intercourse, and had eventually ruled in favour of the defendant, claiming that the woman implied that she had wanted sex through her choice of dress, kissing the defendant, and engaging in oral sex.
This landmark case changed the consent laws in South Africa, which now require that consent be given consciously and voluntarily (though still holding that it can be implied or explicit). Crucial to this case, the SCA also ruled that withdrawal of consent during a sexual act is valid, and a continuance of that act is a violation of consent.
There are groups around the world fighting for the right to practise consensual kink. Sexual Freedom is an important movement, and arguably critical to ensuring kinksters aren’t sued, or imprisoned, for doing what they want to do.
Unless you’re breaking a law in your country (or the country you’re in at the time), there’s nothing to clearly define the global legality of kink as a whole.
