The Legality of Kink: U.S.
Is kink or BDSM legal in the United States?
In the United States, the legality of acting on a specific kink varies greatly depending on the region and the state in which you live.
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.
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.
The U.S. Supreme Court’s Interpretation of “Obscene Material”
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.
The Legality of 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 sixteen states that still had it on their books; three of which specifically targeted same-sex relations (boldened in the following list): Alabama, Florida, Georgia, Idaho, Kansas, Kentucky, Louisiana, Maryland, Massachusetts, Michigan, Minnesota, Mississippi, North Carolina, Oklahoma and 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 Involving BDSM
The cases below are examples of how just a few state judicial systems have addressed BDSM and kink. It’s important to note that the rulings within each state in the U.S. are mutually exclusive. In other words, one state’s rulings do not impact another’s and have no precedential value outside of that given state. For this reason, we’ve specified the state next to each court case listed.
Commonwealth v Appleby (Massachusetts, 1978)
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.
The case involved a masochist (Cromer) and a Sadist (Appleby), who 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 of it. Appleby was ultimately charged with assault and battery with a deadly weapon, and sentenced to up to 10 years in Massachusetts Correctional Institution.
Recognising the importance of consent within BDSM and kink-related activities, along with the need for better education around these topics, is highlighted by the preferrential treatment of defendants displayed by the courts in numerous sexual assault cases over the decades.
State v Collier (Iowa, 1985)
In this important case, a female out-call model named Steel was subjected to BDSM acts whilst being detained by the owner of the business where she was employed.
The defendant claimed that Steel had instructed him to tie her up and beat her, and that the sadomasochistic activities should be deemed a “social activity” under Iowa State law. Steel, conversely, argued that she was fulfilling one of the owner’s sexual fantasies, but that 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 that Steel was able to locate a gun near the bed, shooting at Collier in self-defense.
Collier was ultimately charged with assault.
State v Van (Nebraska, 2004)
The 2004 case State v Van underscored the importance of education and informed consent within the context of M/s relationships, especially those that are entered into with “no limits” - an incredibly high-risk form of consensual non-consent dynamic, where things can go very wrong very quickly.
In the beginning of the relationship between JGC and Van, a slave and Master respectively, it appeared that things were quickly becoming more serious. The pair exchanged hundreds of emails in the course of three months, at the end of which JGC staged his own abduction in Texas, ending up at Van’s floral shop in Omaha, Nebraska two days later. Over the course of this tumultuous relationship, JGC submitted to many S&M activities and asked repeatedly to go home. Under the auspices that 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 the other slave under Van’s Mastery who aided his escape and return home. This case underscores the importance of fully understanding what “no limits” means, and the responsibilities that come with it for both sides of the slash.
The consequences in this case were severe - JGC was likely traumatized for life and Van was charged with numerous assault charges, false imprisonment, and terroristic threats.
Doe v George Mason University, et. al. (Virginia, 2015)
This case addressed John Doe’s complaint that he hadn’t been readmitted to George Mason University after being expelled for allegedly stalking his ex-girlfriend.
John and Jane Doe frequently engaged in BDSM, and after Jane claimed that John had ignored her safeword, the couple broke up. John Doe continued to try and make contact with Jane via email and text, leading her to ultimately file 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 that 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.
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.
